Abstract

After a campaign denigrating Muslims as “sick people,” blaming the children of Muslim Americans for terrorism, and promising to “shut down” Muslim immigration, and mere days after his inauguration, President Donald J. Trump banned the nationals of seven majority-Muslim countries from entry into the United States. In the litigation that followed, one question persisted: how should courts analyze an exclusion order when the President invokes a national security justification and there is also direct evidence of racial or religious animus? The Supreme Court reviews exclusion decisions deferentially for the existence of a “facially legitimate and bona fide reason,” under Kleindienst v. Mandel, but explicit animus raises a key question: what effect, if any, does explicit presidential animus have on this deferential standard of review?

In Trump v. Hawaii, the Supreme Court reversed the lower court’s grant of a preliminary injunction against the third version of the travel ban. The majority deferred to the President’s national security justification, despite smoking gun evidence of anti-Muslim animus, because it determined that animus was not the “sole” motive for the travel ban. In dissent, Justice Sotomayor argued that a reasonable observer would conclude that the travel ban’s “primary purpose” was to express hostility toward Muslims, and deference was unwarranted. At the root of this debate is a disagreement about the proper analysis of mixed motives.

Analyzing deference and analogous doctrines in other areas of law, this Article argues for a third way: that courts should use a mixed motives framework invalidating a contested law where the same law would not have been promulgated but for animus. Under this approach, plaintiffs must “plausibly” allege animus with “sufficient particularity.” Upon plaintiff’s motion for a preliminary injunction, the government must proffer some evidence of an independently sufficient justification, apart from animus, for the challenged policy. Ultimately, the plaintiffs must prove that animus was a necessary motive for the contested law. This framework invalidates laws lacking sufficient non-animus justification, but permits laws for which animus is not a necessary motive. This Article seeks to offer a way for courts to capture better the benefits of immigration deference while minimizing the costs.

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